kassia siegel (ak bar # 0106044) julie teel simmonds (pro ......imperiled marine mammals, including...
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Cook Inletkeeper, et al., v. Ross, et al.
Complaint
Case No. 3:19-cv-00238-HRH 1
Kassia Siegel (AK Bar # 0106044)
Julie Teel Simmonds (pro hac vice pending)
Kristen Monsell (pro hac vice pending)
CENTER FOR BIOLOGICAL DIVERSITY
1212 Broadway, Suite 800
Oakland, CA 94612
T: (510) 844-7100
F: (510) 844-7150
Attorneys for Plaintiffs Cook Inletkeeper and
Center for Biological Diversity
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
COOK INLETKEEPER and
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiffs,
v.
WILBUR ROSS, Secretary of
Commerce; JIM BALSINGER,
Regional Administrator of
National Marine Fisheries Service;
NATIONAL MARINE
FISHERIES SERVICE,
Defendants.
Civil Action No. 3:19-cv-00238-HRH
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
(5 U.S.C. §§ 701-06; 16 U.S.C. §§ 1361-
1421; 16 U.S.C. §§ 1531-1544; 42 U.S.C.
§§ 4231-4370)
INTRODUCTION
1. In this case, Plaintiffs Cook Inletkeeper and Center for Biological Diversity
(“Plaintiffs”) challenge a regulation that permits the oil and gas company Hilcorp Alaska
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LLC (“Hilcorp”) to harm and harass critically endangered Cook Inlet beluga whales and
other marine mammals incidental to oil and gas exploration and development activities
in Cook Inlet, including 2-dimensional (2D) and 3-dimensional (3D) seismic airgun
blasting.
2. Seismic surveys detect oil and gas reserves beneath the ocean floor by blasting
the water column using dozens of airguns that generate some of the loudest sounds
humans produce in the ocean. These seismic surveys can disturb, injure, and even kill
animals across the marine ecosystem, from zooplankton and fish to dolphins and whales.
3. Along with 2D and 3D seismic surveys, Hilcorp’s activities will include
geohazard surveys, pile driving, well drilling, vessel activity, and other sources of
harmful noise pollution.
4. Marine mammals depend on sound for all their essential life functions, and the
noise generated by these activities can harm them in a variety of ways. Noise can, for
example, cause auditory injury in marine mammals, avoidance or displacement from
important habitats, and masking that impairs their ability to communicate, mate, find
prey, and detect predators.
5. The National Marine Fisheries Service (“Fisheries Service”) finalized regulations
authorizing Hilcorp to “take” (i.e., harm and harass) eleven species of marine mammals
in Cook Inlet, Alaska over a five-year period: Eastern Pacific gray whales; Northeastern
Pacific fin whales; Alaska minke whales; Western North Pacific humpback whales;
Cook Inlet beluga whales; Alaska Resident killer whales; Alaska Transient killer whales;
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Gulf of Alaska harbor porpoise; Alaska Dall’s porpoise; Western Steller sea lion; and
Cook Inlet/Shelikof harbor seals.
6. In its summary of planned activities, the Fisheries Service’s regulation anticipates
over 3,000 days of activity, including up to 240 days of exploratory well activity per
year for three years, 180 days of Iniskin Peninsula exploration and development
construction per year for three years, over 100 days of geohazard surveys in three
locations, 150 days of Granite Point production drilling and geohazard surveys, 30 days
of 2D seismic testing, and 60 days of around-the-clock 3D seismic exploration activity,
with the airguns firing every 4.5 to 6 seconds, amounting to up to 800 seismic airgun
blasts per hour.
7. In total, the Fisheries Service estimates Hilcorp’s activities will harm marine
mammals an estimated 12,663 times in just one year of this five-year regulation.
8. Scientific experts, including the federal Marine Mammal Commission, have
repeatedly warned that noise pollution from oil and gas activities in the Inlet is likely to
push Cook Inlet beluga whales closer to extinction. The Commission has advised that
such projects, including the incidental take regulations at issue in this case, should not be
authorized while this highly imperiled species continues to decline.
9. Indeed, the Fisheries Service has itself recently recognized that the Cook Inlet
beluga whale is one of the most endangered marine mammals on the planet and that
“immediate, targeted efforts are vital for stabilizing their populations and preventing
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their extinction.” Species in the Spotlight Priority Actions: 2016-2020 Cook Inlet Beluga
Whale Delphinapterus leucas, at 1.
10. Its 2016 Recovery Plan for the Cook Inlet beluga whale identified reducing the
threat of anthropogenic noise and the cumulative effects of multiple stressors as the
highest priority for stabilizing the population and preventing its extinction. Only a
category for “catastrophic events” such as oil spills was similarly ranked. National
Marine Fisheries Service, Recovery Plan for the Cook Inlet Beluga Whale
(Delphinapterus leucas) (December 2016), at xiii.
11. Effects on the other vulnerable marine mammal species in Hilcorp’s project area,
including endangered fin whales, endangered humpback whales, and endangered Steller
sea lions, could also be severe.
12. Despite this, the Fisheries Service issued regulations allowing Hilcorp to conduct
its oil and gas activities in Cook Inlet. The agency did so by making arbitrary and
unlawful findings under the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§
1361–1407, the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–1544, and the
National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4231–4370, and failing to
actually analyze the impacts of the authorized take as required by law.
13. Accordingly, Plaintiffs seek an order declaring the Fisheries Service’s incidental
take regulations to be arbitrary, capricious, and in violation of the MMPA, ESA, and
NEPA, and vacating the unlawful regulation and accompanying biological opinion,
environmental assessment, and finding of no significant impact.
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JURISDICTION AND VENUE
14. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the
laws of the United States) and 28 U.S.C. § 1346 (actions against the United States). An
actual, justiciable controversy now exists between Plaintiffs and Defendants, and the
requested relief is proper under 28 U.S.C. §§ 2201–02. Judicial review is available under
the Administrative Procedure Act. 5 U.S.C. §§ 701–06.
15. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because the events
and omissions giving rise to the claim occurred in this district.
PLAINTIFFS
16. Plaintiff COOK INLETKEEPER is a private nonprofit organization dedicated to
protecting the vast Cook Inlet watershed and the life it sustains. Since its inception in
1995, Cook Inletkeeper has relied on research, education, and advocacy to become a
leader in watershed-based protections in the rich but threatened streams, lakes, and
estuaries of the Cook Inlet watershed. Among other things, Cook Inletkeeper was lead
petitioner in the effort to list the Cook Inlet beluga whale as endangered under the ESA,
and it has led and supported citizen-based science efforts to count, identify, and better
understand the Cook Inlet beluga whale. Additionally, Cook Inletkeeper focuses a
considerable amount of its work on protecting wild salmon habitat to ensure beluga
whales and other marine mammals in the Inlet have sufficient food sources.
17. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the “Center”) is a
nonprofit corporation headquartered in Tucson, Arizona, with offices across the country
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and in Baja California Sur, Mexico. The Center has over 67,300 members throughout
the United States, including Alaska. The Center works through science and
environmental law to advocate for the protection of endangered, threatened, and rare
species and their habitats both in the United States and abroad. The Center has been
actively involved in protecting Alaska’s wildlife since the early 1990s. The Center’s
Oceans Program focuses specifically on conserving marine wildlife and habitat. In
pursuit of this mission, the Center has been actively involved in securing protections for
imperiled marine mammals, including Cook Inlet beluga whales. The Fisheries Service
listed the Cook Inlet belugas as endangered in 2008 in response to a legal petition filed
by the Center and Cook Inletkeeper. The Center also has engaged in longstanding efforts
to protect Cook Inlet beluga whales and other Alaska-dwelling species from water and
noise pollution, disturbance from vessels, the risk of offshore oil drilling activities and
spills, and other threats.
18. Plaintiffs bring this action on behalf of themselves and their members. Plaintiffs
and their members live near and regularly visit Cook Inlet to observe, photograph, study,
and otherwise enjoy critically endangered Cook Inlet beluga whales, gray whales, fin
whales, minke whales, humpback whales, killer whales, porpoises, sea lions, harbor
seals, and their habitat. Plaintiffs and their members have an interest in the survival,
recovery, and health of these species and their habitat. For example, Plaintiffs’ members
regularly walk along, sail, and go whale watching to enjoy the marine habitat and look
for and photograph Cook Inlet beluga whales and their habitat. Plaintiffs and their
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members and staff derive recreational, spiritual, professional, scientific, educational, and
aesthetic benefits from the presence of Cook Inlet marine mammals and their habitat.
Plaintiffs’ members and staff intend to continue to frequently engage in these activities
and to use and enjoy Cook Inlet marine mammal habitat in the future.
19. The Fisheries Service’s failure to comply with federal law, and the resulting
harm to the marine environment, including the disturbance, injury, and death of marine
mammals and other marine life, irreparably harms the interests of Plaintiffs and their
members.
20. Plaintiffs’ injuries will be redressed by the relief they request. Plaintiffs have no
other adequate remedy at law.
DEFENDANTS
21. Defendant WILBUR ROSS is named in his official capacity as the Secretary of
the U.S. Department of Commerce. The Secretary is vested with authority over and the
duty to conserve the marine mammals at issue in this case under the ESA and MMPA
and is the official ultimately responsible under federal law for ensuring that the actions
and decisions of the Department comply with all applicable laws and regulations,
including the MMPA, ESA, and NEPA.
22. Defendant JIM BALSINGER is named in his official capacity as the Regional
Administrator of the Fisheries Service for the Alaska Region. Regional Administrator
Balsinger has the responsibility at the regional level for implementing and fulfilling the
agency’s duties under the MMPA, ESA, and NEPA.
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23. Defendant NATIONAL MARINE FISHERIES SERVICE is an agency within the
U.S. Department of Commerce. The Fisheries Service is the agency to which the
Secretary of Commerce has delegated the authority to manage marine mammals under
the MMPA and ESA, including whales, dolphins, porpoises, seals, and sea lions.
LEGAL BACKGROUND
Marine Mammal Protection Act
24. Recognizing that “certain species and population stocks of marine mammals are,
or may be, in danger of extinction or depletion as a result of man’s activities,” Congress
passed the MMPA in 1972 to ensure that marine mammals are “protected and
encouraged to develop to the greatest extent feasible.” 16 U.S.C. § 1361(1), (6).
25. To promote its objectives, the MMPA establishes a general moratorium on the
“taking” of marine mammals, 16 U.S.C. § 1371(a) and expressly prohibits the
unauthorized “take” of a marine mammal by any person. Id. § 1372(a)(1), (2).
26. The MMPA broadly defines “take” as “to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture, or kill any marine mammal.” Id. § 1362(13). And it defines
“harassment” to include any act that has the potential to (1) “injure a marine mammal”
(known as Level A harassment); or (2) “disturb a marine mammal” by disrupting
behavioral patterns such as migration, breeding, feeding, or sheltering (known as Level
B harassment). Id. § 1362(18)(A).
27. The MMPA provides several narrow exceptions to the moratorium on takings. Id.
§1371(a)(5). As is relevant here, the MMPA authorizes the Fisheries Service to
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promulgate regulations, with a maximum duration of five years, that enable U.S. citizens
engaged in a specified activity other than commercial fishing to take marine mammals
incidental to that activity. 16 U.S.C. §1371(a)(5)(A); 50 C.F.R. §§ 216.101–108.
28. To meet these goals,, Congress carefully circumscribed the ability of the agencies
to authorize such incidental takings. First, the Fisheries Service can authorize the take of
only “small numbers of marine mammals of a species or population stock.” 16 U.S.C. §
1371(a)(5)(A)(i).
29. Second, the total of authorized take must have no more than “a negligible impact
on such species or stock” and must “not have an unmitigable adverse impact on the
availability of such species or stock for taking for subsistence uses.” Id. §
1371(a)(5)(A)(i)(I), (II).
30. Third, if the Fisheries Service authorizes a take, the agencies must also prescribe
“means of effecting the least practicable impact” on the marine mammal species or stock
and their habitat, “paying particular attention to rookeries, mating grounds, and areas of
similar significance” and must prescribe monitoring and reporting requirements. Id. §
1371(a)(5)(A)(i)(II).
31. The Fisheries Service’s incidental take regulations must be “based on the best
available information.” 50 C.F.R. § 216.105(c).
32. The Fisheries Service regulations implementing the MMPA define a negligible
impact as “an impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the species or stock through
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effects on annual rates of recruitment or survival.” Id. § 216.103. The regulations also
define “small numbers” as “a portion of a marine mammal species or stock whose taking
would have a negligible impact on that species or stock.” Id. The Ninth Circuit has
struck down the regulatory definition of “small numbers” as inconsistent with the
MMPA.
33. A “Letter of Authorization” is required to conduct activities under any regulations
established by the Fisheries Service under section 1371(a)(5)(A). Id. § 216.106(a). The
Fisheries Service will issue a Letter of Authorization “based on a determination that the
level of taking will be consistent with the findings made for the total taking allowable
under the specific regulations.” Id. § 216.106(b).
34. To ensure all decisions related to marine mammals are made based on the best
scientific information, Congress established the Marine Mammal Commission and
directed it to make recommendations to the Fisheries Service on matters related to
marine mammals. 16 U.S.C. §§ 1401–02. The MMPA requires that any deviation from
the Marine Mammal Commission’s recommendations must be explained in detail. Id. §
1402(d).
Endangered Species Act
35. In enacting the ESA, Congress recognized that certain species “have been so
depleted in numbers that they are in danger of or threatened with extinction” and that
these species are “of esthetic, ecological, educational, historical, recreational, and
scientific value to the Nation and its people.” 16 U.S.C. § 1531(a)(2), (3).
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36. The ESA protects imperiled species by listing them as “endangered” or
“threatened.” A species is “endangered” if it “is in danger of extinction throughout all or
a significant portion of its range.” 16 U.S.C. § 1532(6). A species is “threatened” if it “is
likely to become an endangered species within the foreseeable future throughout all or a
significant portion of its range.” Id. § 1532(20).
37. The ESA seeks “to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, [and] to provide a
program for the conservation of such . . . species.” Id. § 1531(b).
38. The ESA defines conservation as “the use of all methods and procedures which
are necessary to bring any endangered species or threatened species to the point at which
the measures provided pursuant to [the ESA] are no longer necessary.” Id. § 1532(3).
Accordingly, the ultimate goal of the ESA is not only to prevent listed species from
going extinct, but also to recover these species to the point where they no longer require
ESA protection.
39. To accomplish these goals, Section 4 of the ESA requires NMFS to designate
“critical habitat” for listed species. Id. § 1533(a)(3)(A). Critical habitat includes specific
areas occupied by the species with “physical or biological features . . . essential to the
conservation of the species and . . . which may require special management
considerations or protection,” as well as specific areas unoccupied by the species that
“are essential for the conservation of the species.” Id. § 1532(5)(A).
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40. Section 9 of the ESA generally makes it unlawful for “any person” to “take” an
endangered species. 16 U.S.C. § 1538(a)(1)(B), (C). A “person” includes private parties
as well as local, state, and federal agencies. Id. § 1532(13). “Take” is defined broadly
under the ESA to include harassing, harming, wounding, killing, or capturing a protected
species (or attempting to engage in such conduct), either directly or by degrading its
habitat enough to impair essential behavior patterns. Id. § 1532(19); 50 C.F.R. §
222.102. The ESA prohibits the acts of parties directly causing a take as well as the acts
of third parties, such as governmental agencies, whose acts cause such taking to occur.
16 U.S.C. § 1538(g).
41. Additionally, Section 7(a)(2) of the ESA requires federal agencies to “insure that
any action authorized, funded, or carried out by such agency . . . is not likely to
jeopardize the continued existence of any” listed species or result in the “destruction or
adverse modification” of designated critical habitat. Id. § 1536(a)(2).
42. To comply with Section 7(a)(2)’s substantive mandate, federal agencies must
consult with the Fisheries Service when their actions “may affect” a listed marine
species. Id. The agencies must utilize the “best scientific and commercial data available”
during the consultation process. Id.; 50 C.F.R. § 402.14(f), (g)(8).
43. Where the Fisheries Service is also the acting agency, (as in this case where the
agency promulgated incidental take regulations under the MMPA), and its actions affect
species under its own jurisdiction, the Fisheries Service must undertake internal
consultation.
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44. Where formal consultation is required, the Fisheries Service, in its capacity as the
expert consulting agency, develops a biological opinion that determines if the agency
action is likely to jeopardize the continued existence of the species. 16 U.S.C. §
1536(a)(2). The biological opinion must include a summary of the information upon
which the opinion is based and consider whether the aggregate effects of the factors
considered in the environmental baseline, effects of the action, and cumulative effects,
when viewed against the status of the species, are likely to jeopardize the continued
existence of the species. 50 C.F.R. §§ 402.02, 402.14(g).
45. “Effects of the action” include both direct and indirect effects of an action “that
will be added to the environmental baseline.” Id. § 402.02. The “environmental
baseline” includes “the past and present impacts of all Federal, State or private actions
and other human activities in the action area, the anticipated impacts of all proposed
Federal projects in the action area that have already undergone formal or early section 7
consultation, and the impact of State or private actions which are contemporaneous with
the consultation in process.” Id. “Cumulative effects” include “future State or private
activities, not involving Federal activities, that are reasonably certain to occur within the
action area.” Id.
46. Thus, in issuing a biological opinion, the Fisheries Service must consider not just
the isolated share of responsibility for impacts to the species traceable to the activity that
is the subject of the biological opinion, but also the effects of that action when added to
all other activities and influences that affect the status of that species.
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47. After the Fisheries Service has added the direct and indirect effects of the action
to the environmental baseline and cumulative effects, it must make its determination of
“whether the action is likely to jeopardize the continued existence of a listed species.”
Id. § 402.14(h)(3).
48. A likelihood of jeopardy is found when “an action [] reasonably would be
expected, directly or indirectly, to reduce appreciably the likelihood of both the survival
and recovery of a listed species in the wild by reducing the reproduction, numbers, or
distribution of that species.” 50 C.F.R. § 402.02. Recovery is defined as “improvement
in the status of listed species to the point at which listing is no longer appropriate.” Id.
49. If the Fisheries Service determines that the agency action is likely to jeopardize
the species, the opinion may specify reasonable and prudent alternatives that will avoid
jeopardy and allow the agency to proceed with the action. 16 U.S.C. § 1536(b)(3). The
agencies may also “suggest modifications” to the action during the course of
consultation to “avoid the likelihood of adverse effects” to the listed species even when
not necessary to avoid jeopardy. 50 C.F.R. § 402.13.
50. A biological opinion that concludes that the agency action is not likely to
jeopardize the continued existence of a listed species but will result in take incidental to
the agency action must include an incidental take statement. 16 U.S.C. § 1536(b)(4). The
incidental take statement must specify the amount or extent of incidental taking on such
listed species, “reasonable and prudent measures” that the Fisheries Service considers
necessary or appropriate to minimize such impact, and set forth “terms and conditions”
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that must be complied with by the action agency to implement the reasonable and
prudent measures. Id.; 50 C.F.R. § 402.14(i).
51. Additionally, when the listed species to be incidentally taken are marine
mammals, the take must first be authorized by the Fisheries Service pursuant to the
MMPA, and the incidental take statement must include any additional measures
necessary to comply with the MMPA take authorization. 16 U.S.C. § 1536(b)(4)(C).
52. The take of a listed species in compliance with the terms of a valid incidental take
statement is not prohibited under Section 9 of the ESA. 16 U.S.C. § 1536(b)(4), (o)(2);
50 C.F.R. § 402.14(i)(5).
National Environmental Policy Act
53. NEPA, the nation’s “basic national charter for protection of the environment,”
seeks to “insure that environmental information is available to public officials and
citizens before decisions are made and before actions are taken,” and to “help public
officials make decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and enhance the environment.” 40
C.F.R. § 1500.1(a)–(c).
54. To reach these goals, federal agencies must prepare an Environmental Impact
Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C).
55. The Council on Environmental Quality has promulgated regulations
implementing NEPA, which are binding on all federal agencies. 40 C.F.R. § 1507.1.
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56. The regulations specify the factors an agency must consider in determining
whether an action may significantly affect the environment and warrant preparation of
an EIS. Id. § 1508.27. Specifically, whether an action may have “significant” impacts on
the environment is determined by considering the “context” and “intensity” of the
action. Id. In considering the “context” of the action, the significance of the project
“must be analyzed in several contexts such as society as a whole (human, national), the
affected region, the affected interests, and the locality.” Id. § 1508.27(a).
57. The “intensity” of the action is determined by considering the ten factors
enumerated in the regulations, which are: (1) impacts that may be both beneficial and
adverse; (2) the degree to which the proposed action affects public health or safety; (3)
unique characteristics of the geographic area such as proximity to historic or cultural
resources, park lands, or ecologically critical areas; (4) the degree to which the effects on
the human environment are likely to be highly controversial; (5) the degree to which the
possible effects on the human environment are highly uncertain or involve unique or
unknown risks; (6) the degree to which the action may establish a precedent for future
actions with significant effects; (7) whether the action is related to other actions with
individually insignificant but cumulatively significant impacts; (8) the degree to which
the action may cause loss or destruction of significant scientific, cultural, or historical
resources; (9) the degree to which the action may adversely affect a species listed under
the ESA or its designated critical habitat; and (10) whether the action threatens a
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violation of federal, state, or local environmental laws. Id. § 1508.27(b). The presence of
just one of these factors may be sufficient to require preparation of an EIS.
58. NEPA’s regulations provide that an agency may first prepare an Environmental
Assessment (“EA”) aimed at determining whether the environmental impact of a
proposed action may be “significant,” warranting preparation of an EIS. 40 C.F.R. §
1501.3. If, pursuant to the EA, an agency determines that an EIS is not required, it must
issue a “Finding of No Significant Impact” (“FONSI”) that presents the reasons why the
proposed agency action will not have a significant impact on the human environment. Id.
§§ 1501.4(e), 1508.13. The EA must “provide sufficient evidence and analysis for
determining whether” a FONSI is sufficient to satisfy NEPA. Id. § 1508.9(a)(1).
59. An agency may only issue a FONSI for actions with no significant impact on the
human environment. See id. § 1508.13. If an action may have a significant effect on the
environment, or if there are substantial questions as to whether it may, an EIS must be
prepared.
60. Both EAs and EISs must specify the underlying purpose and need to which the
agency is responding in proposing the action. Id. §§ 1502.13, 1508.9(b).
61. Both EAs and EISs must also “describe the environment of the areas to be
affected or created by the alternatives under consideration.” Id. § 1502.15.
62. Additionally, EAs and EISs must discuss a proposed action’s direct, indirect, and
cumulative effects. 40 C.F.R. §§ 1502.16, 1508.9(b). Direct effects are “caused by the
action and occur at the same time and place,” whereas indirect effects are “caused by the
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action and are later in time or farther removed in distance, but are still reasonably
foreseeable.” Id. § 1508.8. Cumulative effects are “the impact on the environment which
results from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions.” Id. § 1508.7.
63. EAs and EISs must also include a reasonable range of alternatives, 42 U.S.C. §
4332(2)(C)(iii), (E), 40 C.F.R. § 1508.9(b), and provide “a clear basis for choice among
options by the decisionmaker and the public.” 40 C.F.R. § 1502.14.
64. “Accurate scientific analysis, expert agency comments, and public scrutiny are
essential to implementing NEPA.” Id. § 1500.1(b).
Administrative Procedure Act
53. Judicial review of federal agency action is governed by the Administrative
Procedure Act (“APA”). 5 U.S.C. §§ 701–706.
54. Under the APA, a person may seek judicial review to “compel agency action
unlawfully withheld or unreasonably delayed.” Id. § 706(1).
55. Also under the APA, courts “shall. . . hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” or “without observance of procedure required by
law.” Id. § 706(2)(A), (D).
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FACTS
Cook Inlet, Alaska
65. Cook Inlet is a semi-enclosed tidal estuary in southcentral Alaska bounded to the
east by the Kenai peninsula. It is fed by three rivers: the Susitna; the Matanuska; and the
Kenai. Cook Inlet’s watershed includes nine terrestrial ecosystems, seven national parks
and wildlife refuges, and four state parks. The watershed includes the alpine tundra of
the Denali Wilderness, coastal rainforests of the southern Kenai Peninsula, and wetlands
of the Susitna, Matanuska, and Kenai river deltas.
66. The Cook Inlet watershed is a sensitive and unique environment that provides
habitat for magnificent wildlife, including all five species of wild Pacific salmon,
herring, scallops, halibut, and several other species of bottom fish, brown and black
bears, moose, caribou, migratory birds, wolves, humpback whales, beluga whales, killer
whales, sea otters, and sea lions.
67. The Cook Inlet watershed is also home to almost two-thirds of Alaska’s
population. The city of Anchorage is located near the head of Cook Inlet, which receives
the Susitna River, and the cities of Kenai and Homer are also located along the Inlet.
Native villages of the Cook Inlet region include Eklutna, Knik, Salamatof, Tyonek,
Chickaloon, Ninilchik, and Seldovia.
68. Cook Inlet oil production began in the 1950s. It peaked at around 230,000 barrels
per day in 1970 and has fallen to 15,000 barrels per day in 2016. The aging oil and gas
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fields and aging industry infrastructure, much of it dating back to the 1950s and 1960s,
led many to believe the industry would phase out operations in the Inlet.
69. However, in 2017, Hilcorp bought fourteen new federal leases covering about
76,615 acres in Cook Inlet. This was the first time since 1997 that a company had
invested in federal oil and gas leases in Cook Inlet. All other existing federal leases in
Cook Inlet expired several years ago with no oil fields ever developed on them.
70. Under the federal Bureau of Ocean Energy Management’s 2017–2022 Outer
Continental Shelf Oil and Gas Leasing Plan, another Cook Inlet lease sale is scheduled
in 2021.
71. Just before the 2017 lease sale, Hilcorp reported a natural gas leak at its
operations in Cook Inlet. The source of the leak was later identified as an underwater
pipeline that had been leaking gas since December. The company was unable to repair
the leak for nearly four months due to broken ice, tidal flows, and limited daylight.
72. In recent years, federal regulators have warned the company to improve
maintenance of its gas pipelines, and state regulators have repeatedly cited Hilcorp for
violating safety regulations for its oil and gas operations in the state. For example, in
2016, the Alaska Oil and Gas Conservation Commission documented more than two
dozen violations over a 3.5-year period at Hilcorp’s operations in Alaska—so many that
the agency concluded that “disregard for regulatory compliance is endemic to Hilcorp’s
approach to its Alaska operations.” AOGCC, Decision and Order Re: Failure to Test
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BOPE After Use, Milne Point Unit I-03, PTD 1900920, Other Order 109, Docket No.
OTH-15-029 at 3 (May 3, 2016).
73. Hilcorp is expanding its operations in other parts of Alaska as well. In August
2019, BP announced that it is selling all its Alaska operations to Hilcorp.
Marine Mammals in the Project Area
74. According to the Fisheries Service, the marine mammals in the vicinity of
Hilcorp’s oil and gas exploration and development activities are Cook Inlet beluga
whales, harbor seals, killer whales, harbor porpoises, gray whales, fin whales, minke
whales, Dall’s porpoises, humpback whales, California sea lions, and Steller sea lions.
75. As the agency has acknowledged, “[h]earing is the most important sensory
modality for marine mammals underwater, and exposure to anthropogenic sound can
have deleterious effects.” Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska
Final Rule; issuance of Letters of Authorization (LOA) (“Final Rule”), 84 Fed. Reg.
37,422, 37,466 (July 31, 2019).
76. High intensity noise can contribute to a range of damaging impacts on wildlife.
Seismic surveys can harm marine mammals through hearing impairment; physiological
changes like stress; behavioral impacts such as avoidance or displacement from
important habitats; masking that impairs their ability to communicate, find prey, or
detect predators; and harm to prey species like fish, invertebrates, and zooplankton.
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77. Due to the acoustics of sound in water, seismic surveys affect large areas. A
single seismic survey has been shown to cause endangered fin and humpback whales to
stop vocalizing—a behavior essential to breeding and foraging—and other baleen
whales to abandon habitat over an area at least 100,000 square nautical miles.
78. Other activities associated with oil and gas exploration, including pipe and pile
driving and geohazard and geotechnical surveying using sub-bottom profilers, can harm
and harass marine mammals by displacing them from key foraging habitat, harming their
prey, impairing hearing, masking communication and echolocation vocalizations,
changing swimming and surfacing behaviors, interfering with other essential behaviors,
and causing physiological stress.
79. Some odontocetes, such as beluga whales, are highly sensitive to a range of low-
frequency and low-frequency-dominant anthropogenic sounds, including seismic airgun
noise, which has been shown to displace belugas from near-coastal foraging areas.
80. Each stock of beluga whales is unique and geographically isolated from the
others. Cook Inlet beluga whales are particularly vulnerable. The Cook Inlet stock of
beluga whale in Alaska is critically endangered with only 328 individuals remaining
from its historical abundance estimate of 1,300 animals. The Fisheries Service estimates
that the population is currently declining at a rate of 0.5 percent per year.
81. Beluga whales are known as “the canaries of the sea,” easily recognized by their
range of vocal sounds, white color, social nature, “melon heads,” and ability to move
between salt and fresh water.
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82. They live year-round in Cook Inlet and can be found throughout the Inlet at any
time of year.
83. Cook Inlet beluga whales eat a range of foods, including octopus, shellfish, snails,
and fish such as euchalon and salmon. They return to their birth area each summer to
feed, breed, and calve.
A beluga mother and calf pair near the Beluga River. Photo: Hollis Europe/Jacob Barbaro, NOAA Fisheries
84. The Fisheries Service has noted that belugas make sounds across some of the
widest frequency bands and are one of just five non-human animal species where there
is convincing evidence of frequency modulated vocal learning.
85. The Fisheries Service has recognized that “Cook Inlet beluga whales are
vulnerable to harassment and injury from human-caused sources of noise” and that
“[r]educing in-water noise is an especially important focal effort due to the importance
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of hearing to the Cook Inlet belugas’ survival in the extraordinarily turbid waters of
Cook Inlet.” Fisheries Service Cook Inlet Beluga Whale 5-Year Action Plan at 2.
86. The Fisheries Service designated the whales as “depleted” under the MMPA in
2000 and “endangered” under the ESA in 2008. There has been no subsistence hunting
of the species since 2005. However, the population has shown no signs of recovery.
87. In 2011, the Fisheries Service designated almost 2 million acres of critical habitat
for the whale. In doing so, the agency recognized that “[b]eluga whales are known to be
among the most adept users of sound of all marine mammals, using sound rather than
sight for many important functions, especially in the highly turbid waters of upper Cook
Inlet. Beluga whales use sound to communicate, locate prey, and navigate, and may
make different sounds in response to different stimuli.” Endangered and Threatened
Species: Designation of Critical Habitat for Cook Inlet Beluga Whale; Final Rule, 76
Fed. Reg. 20,180, 20,203 (April 11, 2011).
88. Due to the importance of quiet areas for the whales’ survival and recovery, the
Fisheries Service designated “[w]aters with in-water noise below levels resulting in the
abandonment of critical habitat areas by Cook Inlet beluga whales” as one of five
physical or biological features essential to the conservation of this species. Id.
89. In 2014, the Fisheries Service acknowledged the precarious state of Cook Inlet
beluga whales when it proposed issuing a programmatic environmental impact statement
that would analyze the multitude of anthropogenic activities (including the expected
increase in activities) over multiple years in state and federal waters in Cook Inlet,
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expressing “concern[]” about the “lack of recovery” of the whales. Notice of Intent To
Prepare an Environmental Impact Statement on the Issuance of Take Authorizations in
Cook Inlet, Alaska, 79 Fed. Reg. 61,616, 61617 (Oct. 14, 2014). In 2017, the Fisheries
Service postponed this effort citing funding shortages and a reduced number of
incidental take authorization requests.
90. In 2015, Cook Inlet belugas became one of the Fisheries Service’s eight “Species
in the Spotlight,” which prioritizes those species at the highest risk of extinction. The
Fisheries Service considers these Species in the Spotlight a “recovery priority #1.” A
recovery priority #1 species is one whose extinction “is almost certain in the immediate
future because of a rapid population decline or habitat destruction, whose limiting
factors and threats are well understood and the needed management actions are known
and have a high probability of success, and is a species that is in conflict with
construction or other developmental projects or other forms of economic activity.”
Species in the Spotlight Priority Actions: 2016–2020 Cook Inlet Beluga Whale
Delphinapterus leucas, at 1, n.1.
91. The Fisheries Service developed five-year action plans for each of the eight
species that outline short-term efforts vital for stabilizing their populations and
preventing their extinction.
92. The first of the “Key Actions Needed 2016–2020” in the Fisheries Service’s
Species on the Spotlight Cook Inlet Beluga Whale 5-Year Action Plan is “Reduce the
Threat of Anthropogenic Noise in Cook Inlet Beluga Whale Habitat.” Id. at 4. The plan
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seeks to accomplish this, in part, through “the development, testing, and routine
incorporation of sound-reducing technologies, especially for major noise-producing
activities.” Id. at 4.
93. In December 2016, the Fisheries Service published a Recovery Plan for the Cook
Inlet beluga. Of ten threats identified in the Plan, the Fisheries Service ranks just three in
the category of “High Relative Concern:” (1) Catastrophic events (e.g., natural disasters;
spills; mass strandings); (2) Cumulative effects of multiple stressors; and (3) Noise.
94. The Plan notes that Cook Inlet beluga whale’s “high auditory sensitivity . . . and
dependence upon sound to navigate, communicate, and find prey and breathing holes in
the ice make belugas vulnerable to noise pollution, which may mask beluga signals or
lead to temporary or permanent hearing impairment.” Recovery Plan at II-52. The Plan
summarized that noise threats to the belugas can also cause habitat degradation, is
localized and range-wide, is continuous, intermittent, and seasonal, is increasing overall,
and is of high relative concern.
95. The Plan identifies sources of noise in Cook Inlet from oil and gas development,
including seismic activity, pile driving, vessel traffic, air traffic, drilling, discharge of
wastewater and drilling muds, habitat loss from the construction of oil and gas facilities,
and contaminated food sources and/or injury resulting from an oil spill or natural gas
blowout. It noted that studies on beluga whales specifically have revealed that
anthropogenic noise can impair beluga hearing capabilities, mask the ability of whales to
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hear specific sounds, result in belugas changing their vocal behaviors, and displace
whales from their habitat.
96. It notes that the synergistic effects of noise and contaminants can temporarily and
permanently damage hearing and is “of increasing concern,” Recovery Plan at III-8, and
concludes that “[i]n the long term, anthropogenic noise may induce chronic effects
altering the health of individual CI belugas, which in turn have consequences at the
population level (i.e., decreased survival and reproduction).” Recovery Plan at III-13.
Additionally, “[a]lthough the effects on CI belugas of the diverse types of anthropogenic
noises occurring in their habitat have not been analyzed and are currently unknown,
there is enough evidence from other odontocete species (and for some effects in other
beluga populations) to conclude that the potential for a negative impact to CI beluga
recovery is of high relative concern.” Id..
97. The Marine Mammal Commission has repeatedly advised that the
Fisheries Service defer issuance of incidental take authorizations and regulations until
the Fisheries Service has better information on the cause or causes of the decline of
Cook Inlet beluga whales, and, as part of the Fisheries Service’s small numbers and
negligible impact determinations, has a reasonable basis for determining that
authorizing additional takes by harassment would not contribute to or exacerbate that
decline.
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The Fisheries Service’s Incidental Take Regulations
98. On April 17, 2018, the Fisheries Service received an application from Hilcorp
requesting authorization to take marine mammals incidental to noise exposure resulting
from oil and gas exploration, development, production, and decommissioning activities
in Cook Inlet, Alaska, from May 2019 to April 2024, including 2D and 3D seismic
surveys, geohazard surveys, vertical seismic profiling, vibratory sheet pile driving, and
drilling of exploratory wells.
99. Three Fisheries Service decision documents and analyses required to authorize
Hilcorp’s activities are at issue in this case: (1) the final incidental take regulations
issued under the MMPA; (2) the Biological Opinion for the take regulations issued
under the ESA; and (3) the EA and FONSI issued for the take regulations under NEPA.
100. On July 31, 2019, the Fisheries Service issued incidental take regulations through
a Final Rule for Takes of Marine Mammals Incidental to Oil and Gas Activities in Cook
Inlet, Alaska over the course of five years (July 30, 2019-July 30, 2024) and a one-year
Letter of Authorization to Hilcorp.
101. The Fisheries Service’s incidental take regulations states that the use of the sound
sources described in Hilcorp’s application may result in the take of marine mammals
through disruption of behavioral patterns and auditory injury and thus necessitated an
incidental take authorization.
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102. The geographic area of the activities covers approximately 2.7 million acres in
Cook Inlet and includes land and adjacent waters in Cook Inlet including both State of
Alaska and federal Outer Continental Shelf waters.
103. The Fisheries Service incidental take regulations provide an estimate of the
number of takes authorized to inform its “small numbers” and “negligible impact”
determinations.
104. To estimate take, the Fisheries Service considers (1) acoustic thresholds for
marine mammals above which they will be behaviorally harassed or incur permanent
hearing impairment; (2) the area that will be “ensonified” above these acoustic
thresholds in a day; (3) the density of marine mammals within these areas; and (4) the
number of days of activities.
105. The Fisheries Service counted every take estimated to occur over the course of a
single 24-hour period as one take. In other words, marine mammals could be exposed
multiple times per day by one or more authorized activities, and the Fisheries Service
considered this just one take.
106. The Fisheries Service final regulations and the Letter of Authorization issued to
Hilcorp include two rows for take of Cook Inlet beluga whales. One is titled “Beluga
whale (NMFS)” and authorizes 35 Level B takes for a single year. The second is
“Beluga whale (Goetz),” which also purports to authorize 35 Level B takes for one year.
The qualifiers “NMFS” and “Goetz” are used to indicate that the Fisheries Service
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applied two different models to estimate Cook Inlet beluga whale density and estimate
take. This could be understood to authorize a total of 70 whales in any single year.
107. However, in its responses to public comments, the Fisheries Service stated “[f]or
Cook Inlet beluga whales, the authorized take, by Level B harassment only, accounts for
11 percent of the population annually, which NMFS also considers small.” 84 Fed. Reg.
at 37,458. This indicates that the Service intended to cap authorized take of Cook Inlet
beluga whales at 35 per year.
108. Assuming that is the Fisheries Service’s intent, its table of “Estimated maximum
exposures that may be authorized for each species in a single year,” demonstrates it is
authorizing a maximum of 12,628 takes of marine mammals from Level A and Level B
harassment each year.
109. This amounts to a maximum five-year total authorization of 63,140 takes of
marine mammals from Level A and Level B harassment, including 175 beluga whales or
53 percent of the population.
110. In its “Estimated number of Level A Harassment exposures per activity and
location over five years” the Fisheries Service estimated a maximum of 360 Level A
takes over five years, including 13 minke whales, 2 fin whales, 1 Dall’s porpoise, 40
harbor porpoises, 303 harbor seals, and 1 Steller sea lion.
111. In its calculation of “Estimated number of Level B Harassment exposures per
activity and location over five years,” the Fisheries Service estimated a maximum of
13,847 Level B takes over five years, including 55 “Beluga whale Goetz” and 30
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“Beluga whale NMFS.” In this instance, the Fisheries Service indicates that these two
estimates should be added by defining each figure geographically, with Beluga whale
NMFS defined as “LCI-Lower Cook Inlet Wells” and Beluga whale Goetz as “NCI—
North Cook Inlet well.” Final Rule, 84 Fed. Reg. at 37,484. This totals 85 Cook Inlet
beluga whales taken over five years, which represents 26 percent of the population.
112. The Fisheries Service also estimated a Level B harassment total over the five-year
period of 96 humpback whales, 1 minke whale, 4 gray whales, 17 fin whales, 32 killer
whales, 8 Dall’s porpoise, 237 harbor porpoise, 12,596 harbor seals, and 411 Steller sea
lions.
113. In other words, while the final incidental take regulations authorize a maximum
of 12,628 takes from Level A and Level B harassment each year (a five-year total
authorization of 63,140 takes), the agency does not expect the one-year maximum to be
reached each year. Instead, it expects a total of 14,207 takes from Level A and Level B
harassment over the five-year period.
114. The Fisheries Service noted that it was difficult to characterize each year
accurately because many of the activities are progressive and thus result in uncertainty in
their timing, duration, and complete scope of work.
115. Hilcorp plans to collect 3D seismic survey data for 45-60 days in either the fall of
2019 or spring of 2020 over eight of its fourteen existing federal leases in lower Cook
Inlet. This survey will be active 24 hours per day. The airgun used will fire “every 4.5 to
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6 seconds, depending on the exact speed of the vessel.” Final Rule, 84 Fed. Reg. at
37,446.
116. Hilcorp plans to conduct 2D surveys in the marine, intertidal, and onshore area on
the eastern side of Cook Inlet from Anchor Point to Kasilof in April through October of
2020 or 2021 using similar seismic airgun array sizes used during 3D surveys. The
stated purpose of collecting 2D seismic data is to determine the location of possible oil
and gas prospects within potential future lease sales in state and federal waters.
117. When it completes the 3D surveys, Hilcorp plans to conduct geohazard surveys
on specific areas of interest identified by the surveys before drilling exploratory wells.
The final rule describes the equipment typically used for these surveys, including single
beam and multi-beam echosounders, which provide water depths and seafloor
morphology, a side scan sonar that provides acoustic images of the seafloor, a sub-
bottom profiler that penetrates 20-200 meters, a magnetometer to detect ferrous material,
gravity/piston corers and grab samplers.
118. Hilcorp will then proceed to drill two to four exploratory wells per year from
2020-2022 in lower Cook Inlet based on the 2D and 3D maps, with each well taking
approximately 40-60 days to drill and test and will use pipe driving and vertical seismic
profiling (VSP).
119. Hilcorp also plans to conduct geohazard surveys and exploratory drilling of 1-2
wells in the Trading Bay area using similar methods.
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120. The Fisheries Service’s incidental take regulations also authorize take from
Iniskin Peninsula exploration activities near Chinitna Bay approximately 60 miles west
of Homer. This will include construction of a dock, a long access road, bridges, an air
strip, barge landing/staging areas, fuel storage facilities, an intertidal causeway, water
wells and extraction sites, and a camp/staging area.
121. The incidental take regulations contain mitigation and monitoring requirements,
including as-yet undefined exclusion and safety zones, shut down procedures if belugas
are observed within the area where Level B harassment is expected to occur, aerial
overflights, and the use of protected species observers during specified activities.
122. On August 16, 2019, the Fisheries Service published in the Federal Register a
notice and request for comments on its proposed modification of Hilcorp’s July 31, 2019
Letter of Authorization. It proposed to modify a mitigation measure pertaining to 3D
seismic surveying during Year 1 of Hilcorp’s activity stating that it “published a
mitigation measure in error that stated before ramp up of seismic airguns during the 3D
seismic survey, the entire exclusion zone (EZ) must be visually cleared by protected
species observers (PSOs). This measure is correct for operations beginning in daylight
hours. However, visually clearing the entirety of the EZ to ramp up airgun activity at
night was not NMFS’ intent.” Notice; request for comments on modification of Letter of
Authorization, 84 Fed. Reg. 41,957 (Aug. 16, 2019).
123. The Regional Administrator of the Fisheries Service signed the Biological
Opinion for the incidental take regulations on June 18, 2019, concluding that the action
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was likely to adversely affect Cook Inlet beluga whales along with four other species
listed under the ESA (fin whales, Western North Pacific distinct population segment
(“DPS”) of humpback whales, Mexico DPS of humpback whales, and Western DPS of
Stellar sea lion).
124. The Biological Opinion determined that a subset of Hilcorp’s oil and gas
activities in Cook Inlet would result in acoustic stressors that could result in Level A and
B harassment of marine mammals: 2D seismic survey (assuming a 2400 cubic inch
airgun); 3D seismic survey (assuming a 2400 cui airgun); geohazard surveys (only when
using sub-bottom profilers); drive pipe installation; vertical seismic profiling (VSP);
vibratory sheet pile driving (Iniskin Peninsula causeway); and water jets.
125. It excluded noise from many other covered activities and sources, including
drilling rigs, other geohazard survey equipment, tugs, drilling and well construction,
rock laying, offshore production platforms, hydraulic grinders, underwater cutters,
drones, pingers, vessels, and aircraft.
126. The Fisheries Service notes that little information is available on beluga whales’
reactions to noise pulses, which is “difficult to accurately predict,” and is an area where
more research and data are needed. As a result, it used “generic sound exposure
thresholds” to calculate take. Endangered Species Act (ESA) Section 7(a)(2) Biological
Opinion, AKRO-2018-00381, at 135, 157. The Fisheries Service calculated Level A and
Level B harassment exposures for Cook Inlet beluga whales per activity per location by
multiplying the estimated density of whales per kilometer2 by the area of ensonification,
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and the duration of the activity in days per year. The Fisheries Service explained that
“[i]ndividual animals may be exposed to received levels above our harassment
thresholds more than once per day, but [the Fisheries Service] considers animals only
‘taken’ once per day.” Id. at 146.
127. The Biological Opinion proposed a maximum annual Level B take of beluga
whales of 35 animals and no authorized Level A take in any given year. It estimates that
the Fisheries Service Permits Division will authorize the take of 58 beluga whales by
Level B harassment over the five-year period of activities.
128. For purposes of its analysis, the Fisheries Service considered “any anticipated
take under the MMPA to be expected take under the ESA.” Id. at 169.
129. The Biological Opinion concluded that the action was not likely to jeopardize the
five species analyzed or adversely modify the designated critical habitat of the Cook
Inlet beluga whale or Stellar sea lion.
130. On July 17, 2019, the Fisheries Service finalized an Environmental Assessment
(“EA”) and Finding of No Significant Impact (“FONSI”) for the incidental take
regulations under NEPA.
131. In the EA, the Fisheries Service purported to describe the purpose and need for
the incidental take regulations and then analyze their environmental impacts on the
affected physical, biological, and socioeconomic environment. It clarified that the scope
of its analysis was limited to the decision for which it was responsible, “whether to issue
the regulations and LOAs” or letters of authorization. Environmental Assessment for the
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Issuance of Regulations and Letters of Authorization for the Take of Marine Mammals
Incidental to Hilcorp Alaska LLC Oil and Gas Activities in Cook Inlet, Alaska, at 9.
132. The agency stated its obligation to consider “a reasonable range of alternatives to
a Proposed Action as well as the No Action Alternative.” Id. at 10.
133. The agency then only evaluated two options, the action proposed by Hilcorp,
which “constitutes Alternative 1 and is the Preferred Alternative,” and the No Action
Alternative, which assumes Hilcorp’s application is denied and the final incidental take
regulations are not issued. Id. at 22.
134. The Preferred Alternative consisted of the issuance of the incidental take
regulations and letters of authorization subject to mitigation and monitoring measures
and reporting requirements set forth in the regulation and letters of authorization.
135. The public comments submitted to the Fisheries Service, including from the
Marine Mammal Commission, contained several additional alternatives and mitigation
measures that the agency dismissed.
136. In its section on cumulative impacts, the Fisheries Service lists subsistence
hunting (which is not currently permitted for Cook Inlet beluga whales), fisheries
interactions, vessel traffic, oil and gas development, underwater installations (including
the Alaska LNG pipeline), coastal zone development (including the Pebble Mine project
and Chuitna Coal Project), marine mammal research, and climate change.
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137. However, the Fisheries Service did not provide any analysis of how these and
other projects, including the incidental take regulations at issue, cumulatively impact the
environment and marine mammals in Cook Inlet.
138. Its FONSI determined that the issuance of the incidental take regulations and
LOA to Hilcorp will not significantly impact the quality of the human environment and
the preparation of an Environmental Impact Statement is unnecessary.
FIRST CLAIM FOR RELIEF
(Violations of the Marine Mammal Protection Act and Administrative Procedure
Act)
139. Plaintiffs incorporate each and every allegation set forth in the Complaint by
reference.
140. The Fisheries Service violated the MMPA and APA because it improperly
determined and failed to ensure that the authorized activities will take only “small
numbers” of marine mammals. The Fisheries Service underestimated take, failed to
assess the total number of takes authorized for the five-year regulations, and erroneously
concluded that the take constituted “small numbers.”
141. The Fisheries Service violated the MMPA and APA because it improperly
determined and failed to ensure that the authorized activities will have no more than a
“negligible impact” on marine mammals. For example, as the Marine Mammal
Commission and its Committee of Scientific Advisors on Marine Mammals conveyed to
the agency, the Fisheries Service does not currently have a reasonable basis for
determining that authorizing takes by harassment would not contribute to or exacerbate
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Cook Inletkeeper, et al., v. Ross, et al.
Complaint
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the decline of Cook Inlet beluga whales that could support a negligible impact
conclusion. Additionally, the Fisheries Service underestimated the extent and degree of
take and failed to assess the total number of takes authorized for the five-year
regulations.
142. The Fisheries Service violated the MMPA and APA because it improperly
assessed and failed to prescribe “means of effecting the least practicable adverse impact”
on marine mammals and their habitat, “paying particular attention to rookeries, mating
grounds, and areas of similar significance,” and on the availability of the species for
subsistence uses. The agency failed to ensure that the incidental takes authorized by the
regulations will have the “least practicable adverse impact” on marine mammals and
failed to provide a reasoned analysis for rejecting other mitigation measures as
impracticable, including additional time-area closures and restrictions on level, scope,
timing, and duration of activities, among others.
143. The Fisheries Service violated the MMPA and APA because it did not explain in
detail its deviations from the Marine Mammal Commission’s recommendations.
144. The Fisheries Service’s small numbers, negligible impact, and least practicable
adverse impact determinations are improperly conclusory, have no factual and analytical
basis, are not rationally connected to the facts found, and are not based on the best
available scientific data.
145. The Fisheries Service’s Cook Inlet incidental take regulations violate the MMPA
and its implementing regulations, 16 U.S.C. §§ 1371(a)(5)(A), 1402(d); 50 C.F.R. §
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Cook Inletkeeper, et al., v. Ross, et al.
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216.101–105, and are arbitrary, capricious, an abuse of discretion, made without
observance of procedure required by law, and otherwise not in accordance with the law,
in violation of the APA. 5 U.S.C. § 706(2).
SECOND CLAIM FOR RELIEF
(Violations of the Endangered Species Act and Administrative Procedure Act)
146. Plaintiffs reallege and incorporate, as if fully set forth herein, each and every
allegation in this Complaint.
147. The Fisheries Service’s Biological Opinion failed to conduct the proper jeopardy
analysis under the ESA. The Fisheries Service’s determination in the Biological Opinion
that the take authorized under the regulations will not jeopardize the continued existence
of the Cook Inlet beluga and other listed species is improperly conclusory, has no factual
and analytical basis in the Biological Opinion, is not rationally connected to the facts
found in the Biological Opinion, and is not based on the best available scientific data.
The Biological Opinion also failed to adequately analyze the effects of the action on
both the survival and recovery of Cook Inlet beluga whales, fin whales, humpback
whales, and Stellar sea lions.
148. The Fisheries Service failed to properly consider the effects of the authorized take
on these species when added to the direct and indirect impacts of past and present
activities in the environmental baseline as well as cumulative effects on the species from
vessel traffic, other oil and gas activities, construction projects, and other sources.
149. The Fisheries Service’s Biological Opinion on its issuance of the Cook Inlet
incidental take regulations is a final agency action within the meaning of the APA.
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150. The agency’s issuance of the Cook Inlet incidental take regulations and
Biological Opinion is arbitrary, capricious, an abuse of discretion, and a violation of the
ESA and its implementing regulations, 16 U.S.C. § 1536(a)(2), 50 C.F.R. §§ 402.10–16,
and the APA, 5 U.S.C. § 706(2).
THIRD CLAIM FOR RELIEF
(Violations of the National Environmental Policy Act and Administrative
Procedure Act)
151. Plaintiffs reallege and incorporate, as if fully set forth herein, each and every
allegation in the preceding paragraphs of this Complaint.
152. The Fisheries Service’s failure to prepare an EIS analyzing the impacts of the
take authorized under the incidental take regulations violated NEPA. The Fisheries
Service’s issuance of the Cook Inlet incidental take regulations is a major federal action
within the meaning of NEPA. The Fisheries Service’s decision implicates several NEPA
significance factors for when an EIS is required: it may have adverse impacts; it may
affect geographically unique areas; it involves highly uncertain or unique or unknown
risks; it has cumulatively significant impacts; it may cause loss or destruction of
significant scientific, cultural, or historical resources; and it may adversely affect
threatened or endangered species or their critical habitat.
153. The Fisheries Service’s failure to prepare an EIS constitutes an agency action
unlawfully withheld or unreasonably delayed, in violation of the APA. 5 U.S.C. §
706(1). Alternatively, the Fisheries Service’s decision to issue the take regulations
without first preparing an EIS are arbitrary, capricious, an abuse of discretion, made
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Cook Inletkeeper, et al., v. Ross, et al.
Complaint
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without observance of procedure required by law, and not in accordance with NEPA or
its implementing regulations, in violation of the APA. Id. § 706(2).
154. The Fisheries Service’s EA and FONSI are inadequate under NEPA because the
agency failed to take a “hard look” at the direct, indirect, and cumulative environmental
impacts of its decision before acting. The agency failed to include sufficient evidence
and adequate analysis of the environmental impacts of the proposal and its ultimate no
significant impact conclusion.
155. The Fisheries Service’s EA violated NEPA’s requirement that the Fisheries
Service consider a reasonable range of alternatives to the proposed action. In this case,
the agency considered just two alternatives (the proposed action and no-action
alternatives) without rigorously exploring and objectively evaluating all reasonable
alternatives to the proposed action in violation of NEPA.
156. The Fisheries Service’s EA and FONSI are arbitrary, capricious, an abuse of
discretion, made without observance of procedure required by law, and not in
accordance with NEPA or its implementing regulations, 42 U.S.C. § 4332(2)(C); 40
C.F.R. §§ 1502.14, 1508.7, 1508.8, 1508.9, in violation of the APA. 5 U.S.C. § 706(2).
PRAYER FOR RELIEF
Plaintiffs respectfully request that the Court:
1. Enter a declaratory judgment that the Fisheries Service’s incidental take
regulations violate the MMPA and APA;
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2. Enter a declaratory judgment that the Fisheries Service’s biological opinion on its
incidental take regulations violate the ESA and APA;
3. Enter a declaratory judgment that the Fisheries Service’s EA and FONSI on its
incidental take regulations violate NEPA and APA;
4. Set aside the incidental take regulations, Biological Opinion, EA and FONSI
issued by the Fisheries Service;
5. Enter preliminary and permanent injunctive relief as needed to prevent
irreparable harm from implementation of the activities authorized unless and until the
Fisheries Service complies with the MMPA, ESA, and NEPA;
6. Award Plaintiffs the costs of this action, including reasonable attorneys’ fees; and
7. Grant such other relief as this Court deems just and proper.
Respectfully submitted this 4th day of September, 2019.
s/ Kassia Siegel
Kassia Siegel (AK Bar # 0106044)
CENTER FOR BIOLOGICAL DIVERSITY
s/ Kristen Monsell
Kristen Monsell (CA Bar #304793; pro hac vice pending)
s/ Julie Teel Simmonds
Julie Teel Simmonds (CO Bar # 32822; pro hac vice pending)
CENTER FOR BIOLOGICAL DIVERSITY
Attorneys for Plaintiffs Cook Inletkeeper and Center for Biological Diversity
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